FLC v NSW Trustee and Guardian

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FLC v NSW Trustee and Guardian [2023] NSWCATAD 127

Hearing dates:

On the Papers

Date of orders:

30 May 2023

Decision date:

30 May 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J S Currie, Senior Member

Decision:

Each of the decisions under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW- Merits review- decisions by NSW Trustee and Guardian to sell former residence of protected persons and as to future treatment of their respective refundable accommodation deposits (RADs) and daily accommodation payments (DAPs)-where sale of property and treatment of RAD and DAP opposed by one son of the protected persons. Nature and scope of Tribunal’s review- principles in section 39 NSW Trustee and Guardian Act- paramount importance of welfare and interests of protected person- other section 39 factors- correct and preferable decision.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW); sections 9, 58

Guardianship Act 1987 (NSW); section 4;

NSW Trustee and Guardian Act, 2009 (NSW); sections 39, 70

Powers of Attorney Act 2003 (NSW); section 50

Cases Cited:

DCA v Public Guardian [2017] NSWCATAD 364

DYH v Public Guardian [2021] NSWCATAD 136

FNL v NSW Trustee and Guardian [2023] NSWCATAD 46;

WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22

ZWA v ZWB [2022] NSWCATAP 113

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FLC (Applicant)
NSW Trustee and Guardian (Respondent)

Representation:

Applicant (Self Represented)
R Stormont (NSW Trustee and Guardian) (Respondent)

File Number(s):

2022/00157290

Publication restriction:

The publication of the name of the Applicant and of the persons subject to the decision under review, being the joint owners of the property the sale of which is the subject of that decision, is prohibited under section 64(1)(a) of the Civil and Administrative Tribunal Act, 2013 (NSW).
Note: The name of each such person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them.

reasons for decision

What is this matter about?

1. Mr FLC seeks the review of decisions by NSW Trustee and Guardian (NSW Trustee) in respect of the managed estates of his parents, who I shall refer to as “the mother” and “the father” and collectively as “the parents”.

2. The parents’ estates are managed under the NSW Trustee and Guardian Act 2009 (TAG Act) by NSW Trustee, pursuant to the orders of the Guardianship Division of this Tribunal made on 1 August 2019.

3. The parents are permanent residents in separate aged care facilities. NSW Trustee’s decisions which are under review were, in summary, to sell the family home and to use the proceeds to pay a part refundable accommodation deposit (RAD) of $110,000 and have the unpaid RAD balance of $100,000 paid as a daily accommodation payment (DAP) drawn down from the part RAD payment.

4. On 1 August 2019 the Guardianship Division also made guardianship orders for each of the parents, under which the Public Guardian was appointed as the guardian. Relevantly, the Guardianship Division found…